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Dana Milbank: Fake news comes to the Supreme Court

By Dana Milbank

Washington Post Writers Group

Posted:
10/05/2017 07:35:35 PM MDT

Dana Milbank Washington Post

WASHINGTON — Fake news has come to the high court.

At Tuesday's argument before the Supreme Court about gerrymandering — the science of using map-drawing and Big Data to keep ruling parties in power even when a majority votes for the opposition — Justice Samuel A. Alito Jr. was searching for a way to uphold the unsavory practice. But there was a problem: Gerrymandering is making a mockery of the right to vote in Wisconsin, the focus of the case before the court, where a redrawn map allowed Republicans to hold more than 60 percent of the state assembly while getting less than half the vote.

And so Alito resorted to subterfuge. He waited until the closing minutes and hit Paul M. Smith, the lawyer arguing against the Wisconsin plan, with the last question of the argument.

"You paint a very dire picture about gerrymandering and its effects," Alito said, "but I was struck by something in the seminal article by your expert, Mr. McGhee, and he says there, 'I show that the effects of party control on bias are small and decay rapidly, suggesting that redistricting is at best a blunt tool for promoting partisan interests.' So he was wrong in that?"

The question baffled Smith, who said he would need to see the context.

"Well," Alito retorted, "that's what he said."

No, it isn't.

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I called Eric McGhee, the expert, after the argument. The quote Alito pulled was not from the "seminal article" McGhee co-wrote proposing the legal standard for gerrymandering at the center of the case. It was from an earlier McGhee paper, using data from the 1970s through 1990s. In the paper at the center of the case, by contrast, "we used updated data from the 2000s," McGhee told me, "and the story is very different. It's gotten a lot worse in the last two cycles. ... The data are clear."

Why would Alito resort to this sleight of hand? Perhaps because it's clear that if he stuck to the facts, he'd have to acknowledge that the growing abuse of gerrymandering threatens democracy.

Political gerrymandering has become dramatically more precise in disenfranchising voters with the revolution in data analytics — both in states such as Wisconsin and in Congress, where Democrats need to win the popular vote by more than seven points to break even in the House. (Democrats abuse gerrymandering, too, though they hold power in fewer states.) There's also no obvious legal reason that the court can't intervene to curb the practice on grounds of free speech or equal protection.

"What's really behind all of this," Justice Ruth Bader Ginsburg said during arguments, is "the precious right to vote. If you can stack a legislature in this way, what incentive is there for a voter to exercise his vote?"

Smith predicted that if the court fails to intervene in Wisconsin, "you're going to have a festival of copycat gerrymandering the likes of which this country has never seen. ... The country is going to lose faith in democracy."

Three members of the court's conservative bloc — Alito, Neil Gorsuch and John Roberts Jr., the chief justice — were searching for reasons not to intervene. (A fourth, the silent Clarence Thomas, previously voted against court involvement.) That likely leaves the decision to Anthony M. Kennedy, who is more prone to bouts of fairness than his conservative colleagues.

In an unusual soliloquy, the chief justice argued that the court shouldn't get involved in the Wisconsin case because then it would have to intervene in others. "It's going to be a problem here across the board," he lamented.

The poor dears. Maybe, given that democracy is at stake, they could shorten their summer holiday, which just ended Monday?

Roberts continued: "The intelligent man on the street" will deduce that, if the Supreme Court rules with Democrats in a gerrymandering case, "it must be because the Supreme Court preferred the Democrats over the Republicans. ... And that is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country."

Now he's worried about the public standing of the court? After Bush v. Gore, campaign finance rulings that give the wealthy dominance over elections, and the brazen politics of the Merrick Garland fiasco?

In the gerrymandering case, the justices have a chance to restore "integrity" by defending the principle of one person, one vote. Alternatively, the five Republican appointees can defend their patrons by allowing this perversion of democracy to continue.

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